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The YouTube Snake Is Eating Itself

How VVVVVV's copyright notices underscore the complicated competing interests and contradictions of the popular video service.

Terry Cavanagh is the designer of VVVVVV. He published a gameplay video of VVVVVV on his YouTube channel, and it was flagged with a copyright claim. Magnus Pålsson is the composer of VVVVVV’s music. He also started getting copyright notices about his own music on YouTube.

By the way, if you haven't played VVVVVV, change that.

This is the height of absurdity, and underlines the crossroads YouTube faces when it comes to finding the line on a website built on monetizing user generated content and protecting copyright holders. Right now, it’s very clear which side YouTube is favoring.

The basic question facing YouTube right now is fair use. Fair use is what allows an individual or group to use copyrighted material in their own work. According to the US Copyright Office, that includes “criticism, comment, news reporting, teaching, scholarship, and research.” With games, we’re often talking about people playing games, recording themselves playing them, and putting those videos up on YouTube. Sometimes with commentary, sometimes without. But at its very base level, it’s the recording of playing a game.

On YouTube, these creators are on the defensive.

YouTube faces a dilemma. When Viacom sued YouTube back in 2007 for more than a billion dollars, it prompted the company to start down a road it has continued on ever since. Copyright holders hold immense power on YouTube, and YouTube bends to their will. If a copyright holder makes a claim, that claim is assumed true until it’s proven otherwise by the YouTube user. If a user is unable to prove it has a valid use of copyright, they earn a strike. Three strikes? Your account is gone. That means starting a new channel over from scratch.

Content ID, the system that’s caused recent headaches, is a system created by YouTube in which YouTube videos are matched against files submitted by copyright holders. If a match is found, the policy of the copyright holder is applied. There are three options: monetize (the holder can turn on ads), block (video may no longer be viewable or audio may be muted), and track (nothing changes, but stats are monitored).

The most recent changes to Content ID differentiate between “managed” and “affiliate” channels on YouTube. Managed channels have a deal with YouTube. Machinima is a good example. Most of Machinima is not impacted by these changes, and does not have to worry about Content ID. An affiliate channel is Ryan “Northernlion” Letourneau, who is now responding to individual copyright requests depriving him of revenue.

When a video is being disputed over copyright, it is no longer able to be monetized by the video creator. Every day counts. Why do you think game publications try to hit embargo times for game reviews? You're trying to capitalize on mass interest. It's traffic, and traffic is money. Missing even a day or two can be catastrophic.

Content ID’s an extension of this power for copyright holders, but it’s come with unintended consequences. One includes Let’s Play and other videos being flagged because those games, uh, have music. Soundtrack distribution and artist representation is often handled by companies other than the game publisher.

A closer look at the VVVVVV situation will illuminate what I mean by this.

Pålsson posts on Twitter about how he’s getting copyright noticed about his own material. How?

TuneCore is a service that helps artists sell their music on a variety of online shops, including iTunes, Amazon, Spotify, and most recently, YouTube. According to TuneCore’s website, TuneCore partners with INDMUSIC, an independent music network on YouTube.

“You're owed money every time people use your music in their YouTube videos,” reads TuneCore’s website. “We'll help you collect the most money from YouTube when you use TuneCore for publishing and distribution.”

In this deal, artists keep 90% of royalties from their compositions, 80% of royalties from music used in other people’s YouTube videos, and 100% of royalties from the artist's own YouTube channel.

That leads us to this response from TuneCore on Twitter.

In this humorous exchange, TuneCore is informing Pålsson that TuneCore is actually providing a service for him. TuneCore is serving these copyright notices to folks using his music, which also includes videos of VVVVVV that feature his music. It’s easy to see how this begins to spiral in a million different directions.

Unfortunately for TuneCore, Pålsson doesn’t see this as a service.

And this is where TuneCore becomes very, very confused.

TuneCore can’t imagine a world where Pålsson would want others to use his music freely, including making money off it, without his explicit permission every single time someone makes this decision. Yet for many, this is part of what makes YouTube powerful, a platform for people to share, create, and mix and match content. For America’s archaic copyright system, one that favors copyright holders, it leads to competing interests.

“I want to say that TuneCore isn't a villain,” said Pålsson during an email exchange last night. “I've used them for a long time and their service has been pretty dang good thus far. This problem is systematic and symptomatic of outdated copyright and licensing laws that have not adapted to today's interconnected internet lifestyle that you and I have grown accustomed to.”

This is what it looks like when a video gets a copyright flag.

Pålsson has since talked to TuneCore on the phone to express his problems. He was unaware TuneCore and INDMUSIC had rolled out an automatic identifier (this is the Content ID system) on his behalf, a notice representing Pålsson without Pålsson knowing it was happening. He had assumed this was an error, something he needed to be asked to opt in to, but that’s not the case, as it was part a publishing deal he already signed, albeit prior to TuneCore/INDMUSIC rolling into YouTube.

INDMUSIC CEO and co-founder Brandon Martinez pointed to a communication issue.

“With YouTube's new claims system, tons of channels that weren't previously subject to Content ID claims are now being hit with claims, both valid and invalid,” said Martinez. “INDMUSIC also recently partnered with TuneCore to manage their artists' rights on YouTube. Many of these artists are video game composers who have previously licensed or sold their music without communicating this to their Publisher, TuneCore. When TuneCore's content was uploaded to YouTube, no one was aware that so many channels would be affected because none of this information had been communicated.”

The solutions presented to Pålsson each have a number of drawbacks that don't sit well with him. He can create a whitelist for his content, a set of YouTube users who are allowed to monetize his compositions.

“This alternative will be quite troublesome for the guys doing letsplay videos and reviews etc,” he said. “It would also punish the developer who might not get their game reviewed because of the hassle involved with getting on whitelists.”

The next option is to opt out of the publishing part of his publishing agreement, but since there is no way to easily opt out of just YouTube, that means losing additional revenue streams.

“The publishing part is tied to more services such as Spotify and iTunes under the TuneCore umbrella,” he said. “The money lost there will end up in the hands of those distributors instead. Granted, the artist still retains most of it, but it's a significant deal to lose out a chunk of money on each sale on a bunch of distribution places when there's already middle-men around.”

Pålsson continually pointed out that he believes the problem isn’t necessarily with TuneCore, but given the current framework, it’s unclear how to develop a system that benefits everyone.

“I don't know exactly how it would work technically without generating tons of administrative work” he said. “All I know is that I would like the lets-players, reviewers and game devs use as much music they need to do their work without having a lot of red tape to go through, as it's in the musicians' best interest as well.”

What’s happening on YouTube is important because this content is valuable. YouTube users aren’t just “personalities” to be swept under the rug. Many of them are doing work as legitimate as what myself and my other "traditional" press colleagues do every day. It’s just easier to regulate what’s happening on YouTube because it’s not considered press, and there are tools to manipulate what’s happening. That's not right.

"This problem is systematic and symptomatic of outdated copyright and licensing laws that have not adapted to today's interconnected internet lifestyle that you and I have grown accustomed to."

But right now, INDMUSIC doesn’t have a problem with the way it’s currently being handled.

“Videos should be disputed so content can be allowed to properly monetize,” said Martinez. “Creators should provide as much information about why they are disputing the claim as possible. The current problem is more around a massive massive batch of files being subject to ContentID all at once. It sucks that it is hurting the gaming community so heavily at the moment, but it was a messy situation that needed to be resolved. For every legitimate video this is hurting, there are three or more videos using rights without permission and profiting from such uses.”

And as it stands, YouTube isn't changing any of its policies. A letter sent out to YouTube channel holders, obtained by Kotaku, said as much.

"Whether gaming, music or comedy is your passion, know that we love what you do," said the company. "We've worked hard to design Content ID and other tools to give everyone--from individual creators to media companies--the opportunity to make great videos and earn money. As YouTube grows, we want to make sure we're providing the right product features to ensure that everyone continues to thrive."

More clashes are inevitable, but now, nobody seems happy, not even the copyright holders this is supposed to "help."

Patrick Klepek on Google+
248 Comments
Edited by Sinusoidal

@zabant said:

Youtube has set in motion the process of it's own demise, tis' only a matter of time.

There'll still be the endless piles of cat videos.

Edited by Amafi

I must have missed all the quality content on youtube. I see a lot of challenged teens screaming obscenities, some british people and a lot of people who think reviewing games is all about being hyper critical and that if you don't have at least as many negative things to say as positives you're not being real or some such garbage essentially regurgitating reddit and gaf threads.

A game's creator getting flagged for putting up his own stuff is clearly incredibly stupid. But I don't get the lets play business. Why is it the people playing should get to monetize the videos instead of the people who made the part of the content that actually has any value? These channels are sub public access level personalities. If the money dried up it'd hardly be a huge blow to mankind, maybe they'd be forced to get jobs where they actually contributed to society instead of living off the talents of others and the fact that most of the public watching their "performances" wouldn't know funny or interesting if it walked up and kicked them in the crotch.

And while I can agree to a large extent with Pat about the quality of his work, I think it's incredibly unfair of him to say that most of the industry is at that level. Totally uncalled for.

Posted by Bunny_Fire

i do find this all pretty funny. Now either this will somehow force a update in copyright who knows im betting it wont and youtube will be just managed and vlogs. I do find it funny that on the front page of youtube you can see family guy videos. contentID LOL's

Posted by d711132

I remember a recent Bombcast that had special guests Brad Muir and another Jeff (Too lazy to find his last name) stating how YouTube has allowed people, who are not in a sense "tradtional" videogame journalists or reviewers, to showcase their talent through an accessible medium. Television has lost much of its value to me; there are some shows that have regained my interest but not enough to want me to commit a large part of my day to flipping through certain broadcasts. I have Netflix for that now. Much of my leisure time is now mostly spent surfing YT, watch people who provide quality content in sense that it is not corporate driven - meaning these videos can be as creative or crazy as the producer wants to be with permission from a superior. With this new policy in place, I feel that is another way that big companies and archaic ideals are stifling creativity of everyday individuals who simply want to be creative or crazy.

Personal outcry aside, I am curious as to what will become of YouTube in the future. Whether these drastic changes will have a significant impact on YT as a whole or whether this is just hump that will not deter the ongoing activities of that particular website.

Edited by tourgen

his failing was not being Disney or Viacomm. He has no copy rights. Those are reserved for those with money and lawyers.

Edited by icke

What I don't understand is, why the "copyright holders" are able to block a whole video, even if you are using their music only for a few seconds. Or worse they get all the money from the ads.

Posted by joshwent

In addition to that, the Content ID system is technically compliant with the DMCA, but it goes much deeper than the DMCA requires for compliance. In order to be compliant with the DMCA, all Youtube needs to do is have takedown procedures in place so that when a company requests a DMCA takedown and provides proof that their material was used without their consent, it must be taken down without issue. As it currently stands, Content ID is a "guilty until proven innocent" system, which is not required by law. The issue Google is TRYING to cover up for is that a company COULD argue that with the large amount of content uploaded to Youtube a simple DMCA takedown procedure could allow a lot of stuff to fall through the cracks, but nowhere has it been said that the law requires a "guilty until proven innocent" type of system.

But you're missing the most important piece of the fucked up puzzle. Say a video has been up for 2 days that has unauthorized copyrighted content. Then the copyright holder files a grievance, provides proof, and the content is taken down.

But... in those 2 days, the video was monetized. This is the crucial problem. Now Google as well as the uploader are potentially responsible to get that money back to the copyright holder. And if that's not done correctly, a lawsuit is almost guaranteed.

Multiply that by literally billions, and I think we need to understand that they have to take the proactive stance, or YouTube could be sued out of existence.

And as I said, it's flawed. But this is the first big wave of problems, and there's no reason to think that it won't improve over time. Their first attempt at an almost insurmountable problem, and the media (and apparently the masses) instantly turn on them for being evil.

Misleading "the sky is falling" articles like this are bad for everyone involved.

Posted by Dagbiker

You know you can still host your own content, and lets plays. AND ignore all the copyright notices you wish.

Posted by spraynardtatum

I heard Google bought Boston Dynamics so they could more strongly enforce copyright on their content creators with real life robots. That or they're planning on taking over the world....dear lord.

Google can suck farts. I know that's not as eloquently put as this eye opening article but it's how I feel.

I'll always root for the underdog. Google has been an asshole recently.

Edited by Rolento

...I say just convince PewDiePie to move somewhere. .

Might I suggest the grave?

Edited by Ramone

To me this sounds way more like growing pains than anything else.

Posted by President_Barackbar

@joshwent: But its not misleading. Youtube IS out to kill game channels who aren't backed by networks because they aren't interested in dealing with the fallout. Its the same reason why sites like Vimeo banned gaming content, because they just don't want to deal with it. Acting like this is ok or Youtube is not complicit in the destruction of gaming channels is silly. Just because they aren't outright attacking gaming channels doesn't mean they aren't out to get rid of them. Youtube is sitting in the back pocket of copyright holders by their own free will. If we don't speak out against this kind of stuff it sends a message that its ok to treat users like this.

Posted by Amafi

I heard Google bought Boston Dynamics so they could more strongly enforce copyright on their content creators with real life robots. That or they're planning on taking over the world....dear lord.

Google can suck farts. I know that's not as eloquently put as this eye opening article but it's how I feel.

I'll always root for the underdog. Google has been an asshole recently.

I'm with you man, fuck the people actually creating the games. The tard with the webcam and microphone unfunnily stumbling his way through it on youtube is the one doing the real work.

Posted by toastface

@joshwent: My understanding is that while the law is applied evenly, the consequences of having to defend yourself against false claims can be extremely unfair. A large company has the money and lawyers to basically tie you up in the legal system until you run out of money.

Posted by Ravenlight

Would placing the burden of proof on copyright claimants rather than on the channel owner solve any of this?

Either way, any near-future solution is only going to be a band-aid on the gaping chest wound that is copyright law.

Posted by Quarters

Man, what a mess. I hadn't really read into it much, but this put it all in perspective. Good writing, Scoops. But back to the topic, this is just a giant cluster screw. If they aren't careful, they are going to sink themselves.

Posted by Krabonq

PLEASE stop saying "YouTube does blabla"...

It's GOOGLE that has been pulling the strings for a few years now and it's become very apparent that that company is run by disgusting assholes and don't give a single shit about their customers.

When they announced that YT was sold to Google, I knew the site will go to shit sooner or later.

Yeah, the server upgrades and higher upload limits were great, but everything else went to shit.

Google has really become the biggest asshole in the industry, even dethroning microsoft.

Luckily I don't own any of their products.

Posted by ColonelXanders
@rolento said:

@flacracker said:

...I say just convince PewDiePie to move somewhere. .

Might I suggest the grave?


I think we're still waiting for him to leave the cradle, at this point.

Posted by gugagomes7

nice piece Patrick, a really interesting read!

Posted by CouchCorpse

I got a copyright claim so deleted my whole channel. Fuck'em.

Posted by dudeglove

fucking hell, klepek, why didn't you ask either of them how VVVVV is meant to be pronounced?

Posted by Colonel_Fury

For every legitimate video this is hurting, there are three or more videos using rights without permission and profiting from such uses.

Stats? That's a hefty claim to make. So for every "Let's Play" or review, there are three other videos using that same content, and somehow making illegitimate money from it? With video games, I just don't see it.

Posted by golguin

Was confirmation ever given that this was the thing that Adam Sessler was vague tweeting about a few months back? People acted like it was going to be an isolated thing and he was overreacting to the incoming youtube changes. Seems like a pretty big deal now.

Edited by Amafi

For every legitimate video this is hurting, there are three or more videos using rights without permission and profiting from such uses.

Stats? That's a hefty claim to make. So for every "Let's Play" or review, there are three other videos using that same content, and somehow making illegitimate money from it? With video games, I just don't see it.

How is an automated system supposed to know the difference between video game content and someone, say, ripping off a music video from the official channel or using music without permission as background for some hilarious video of kittens I also don't have permission to use? And why should it matter if it could? Is stealing telltale's IP somehow less serious than doing the same to metallica or whatever?

The vast majority of content is not original material. Probably well over 99% is not.

Edited by RobertOrri

Error: Infinite recursion detected.

Posted by RareSpine

For anybody interested, this is quite informative.

Posted by UltimAXE

Would any of this have happened if the monetization of videos on Youtube never happened, and people didn't look at that and think to themselves how rad it would be to make money by playing video games on the internet? I mean, I guess the fact that nobody was making any money off of anything on Youtube was the initial catalyst.

Edited by MattyT

@themasterds: The music companies issue the claims in these situations, not the game companies. Rock Band/Guitar Hero videos get claimed based solely on the song rights holders. WMG and UMG are seemingly the most aggressive.

Posted by development

Unless Youtube reverses this decision, along with all their jamming of Google+ down our throats, I hope the whole company burns in hell. We need a substitute to hurry up and replace them.

Edited by canadiantoastzombie
Posted by crithon

great article patrick, the whole content id has been more malicious algorithm then actually helpful.

Posted by President_Barackbar

@golguin said:

Was confirmation ever given that this was the thing that Adam Sessler was vague tweeting about a few months back? People acted like it was going to be an isolated thing and he was overreacting to the incoming youtube changes. Seems like a pretty big deal now.

This is not what he was complaining about. His Twitter episode was over the fact that Sony was forcing outlets to attend the launch party for the PS4 in New York in order to obtain a console to use for coverage. This kind of thing wouldn't affect people like him at all since Rev3 is considered a Multichannel Network with Rev3 Games as a managed partner that doesn't intereact with the Content ID system .

Edited by DesktopMan

Just create a bot that claims fair use automatically with a generic response on every complaint. Fight fire with fire.

Posted by SpiritWolfau

A particularly ridiculous part of this system is that there's no way to dispute false content ID claims. There used to be a way, then youtube overhauled the dispute system so there's no longer a "false positive" option. I guess they got tired of sifting through all the claims.

So you've got situations where companies are making money off your videos for music they don't even own the rights to, with no way to stop it. It's ludicrous.

Posted by Nightriff

Great article and I actually read the whole thing, I don't do that typically

Posted by Kaiserreich

DURRR Terry Cavanagh should just get a real job DURRRR.

Edited by Viking_Funeral

Right now it seems that YouTube is unconcerned with people migrating to another system. And people seem unwilling to migrate to another system, or don't believe one is available. Perhaps that is true. But if there ever was a time for competition to step up and improve quality for the user through market forces, now is that time.

Edited by Deusoma

I recently finished a "let's play" video series on Doom 3: BFG Edition. Now, I know that video game footage is sort of in a grey area to begin with, but this anecdote isn't about the game footage. See, one of my videos got flagged for using copyrighted music. YouTube didn't take the video down, or block it in certain countries, it just automatically added an iTunes link to the song in the description. Very clean and painless.

Except that there was no copyrighted song in the video.

YouTube's infamously stupid algorithm for detecting copyrighted material, which has in the past detected violations in videos consisting of static and white noise, determined that I was using a copyrighted song because that specific song samples an audio log from Doom 3. So because I heard the same audio log that that musician stole for his song, YouTube considers me to be stealing from him.

And honestly? I wouldn't care if it weren't for one thing. There's an option to dispute such claims, but all of the options in this disputing system are variations on "I actually do have the right to use this song, and this is why", ranging from obvious traps for the stupid such as "I bought this song online" or "I own the CD" to actually legitimate reasons like "I have made an arrangement with the copyright holder." Not one of the options under this disputing process allowed me to say "this is an inaccurate citation, and no copyright violation was made", not one. That, more than anything else, is what pisses me off about this situation.

Posted by csl316

Jonathan Blow got a copyright claim for The Witness, as well. Which is just interesting.

Edited by Deusoma

@dudeglove said:

fucking hell, klepek, why didn't you ask either of them how VVVVV is meant to be pronounced?

The last time I saw someone ask Terry that in an interview, he said the title of the game is pronounced "the letter V six times." To be clear, that's not "Vee Vee Vee Vee Vee Vee", you're actually supposed to say "the letter V six times". I'm not entirely sure he was being serious, so take from that what you will.

Posted by Veektarius

While I'm definitely not on Youtube's side in this whole thing, I think that there's a point here that is kind of lost in the noise - with a huge company like theirs, the fact that their PR team issued a wholly unapologetic (and borderline Orwellian) response doesn't mean nothing will be changed. It's their job to put the best spin on the situation as stands. This does not necessarily mean that the real organs of power within YouTube are not pursuing a solution behind the scenes.

Posted by ZZoMBiE13

This is all starting to sound a lot like that old Max Headroom television show from the late 80s.

Posted by HellBound

Some people are missing the point. This is not YouTube's decision. Its the big corporations. If YouTube did not go through with it, they would be sued.

Another website getting created would solve zero problems because they would get sued just as fast and easy and would have no money to fight it.

Edited by TheDarkOn3

"It sucks that it is hurting the gaming community so heavily at the moment, but it was a messy situation that needed to be resolved. For every legitimate video this is hurting, there are three or more videos using rights without permission and profiting from such uses."

Brandon Martinez. 2013

Posted by walterbennet

This is some stupid shit and I hope it gets sorted before the Internet becomes an even more difficult place to tolerate.

Posted by ajroo

This is completely nuts. Once Google bought Youtube, you had to know there would eventually be problems. I pray that some other companies can grow and take some of the power Google has right now, or i expect internet freedom to slowly be reduced, just as it has been in RL.

We live in a litigious, regulatory jungle, and its just getting worse.

Posted by Johnyliltoe

As a let's player my main concern is someone making money off of one of my videos because I happen to be playing a game that contains a portion of their song.

I'm fine with a legitimate claim forcing me to take the video down. It sucks, but at least they can argue that it's their right. But taking ad revenue from the videos that I edit and add commentary to? They are now infringing on MY copyright, making money off of MY work without my permission. At that point it can be argued that it's an unintentional collaboration, but as I understand it they make all the money from those ads.

Unfortunately I can't tell what action has been taken on my videos, so I can't be sure what's going on. I'd love to see someone sue a record company for making money from a copyright claim though. It needs to happen.

Edited by Sergio

@superscott597 said:

This whole thing has been a complete and utter mess. We need some new legislation or SOMETHING to protect fair use on the internet. Very sad to see so many people with innocent intentions being hit with these content ID notices.

Actually, we don't. Fair use is fair use as determined by any court case dealing with it. While one can make an argument for updating copyright law in terms of the life of a copyright, fair use doesn't really need to be updated. Just because some might want to claim that talking over a video of them playing a video game constitutes fair use, doesn't mean it is, and certainly doesn't mean that we need legislation to protect Let's Play videos.

While some people do have permission from the copyright holders, that isn't always the case, so I would question monetizing off of someone else's work as "innocent intentions."

Edited by Sergio

@ravenlight said:

Would placing the burden of proof on copyright claimants rather than on the channel owner solve any of this?

Either way, any near-future solution is only going to be a band-aid on the gaping chest wound that is copyright law.

Possibly, but that also puts an additional burden on Youtube that they may not want to deal with. In the end, Google is providing a free service with Youtube. Requiring a burden of proof from claimants means Google would also need to hire people to look into each claim that is made, reducing their own profits just so someone else can monetize on their free service. That's something their stockholders aren't going to go for, so they have Content ID in place.

Claiming fair use on videos of video games on Youtube is not a gaping chest wound that is copyright law.

@johnyliltoe: "But taking ad revenue from the videos that I edit and add commentary to? They are now infringing on MY copyright, making money off of MY work without my permission."

Editing and adding commentary to a Let's Play video may be considered a derivative work, in which case, you don't have a copyright. Also, they aren't "infringing" on it, as they're not taking your work and reproducing it, distributing it, or creating a derivative work without your permission.